Holiday Gifts: Our Fees Stays the Same While USCIS Fees Increase

USCIS is increasing their filing fees across the board effective December 23, 2016. We have parsed through the fee summary charts and organized the fees into those that affect the services offered by our firm. We wanted to pass this on to our potential clients to help you plan ahead and also include a little Holiday Surprise during this time of the year.

Your Holiday Gift

We know that it may be overwhelming to cope with the increased fees from USCIS. That's why we want you to know that while USCIS fees may be increasing, our firm's fees will not be increasing this year. So, call us to get your case work into our firm! We can't promise the same for 2018.

Here is a summary of what is happening to USCIS fees for the services that we offer. We have categorized them into your purposes for filing the petitions, to provide you a more organized chart for your needs.

Family Petitions

For the most part, USCIS has not increased the filing fees related to family petitions by more than $200. Thankfully, they understand that it is hard enough for families to come up with the payment of these fees already.

Form	Title	Old Fees	New Fees
I-129F	Petition for Alien Fiancé(e)	$340	$535
I-130	Petition for Alien Relative	$420	$535
I-751	Application to Remove Conditions on Residence	$505	$595
I-765	Application for Employment Authorization	$380	$410

Employment-Based Petitions

For the most part, filing fees for Employment-based petitions, similar to the Family Petitions, also have only increased a little over $100, staying manageable for employers, both large and small. 

Form	Title	Old Fees	New Fees
I-129	Petition for a Nonimmigrant Worker	$325	$460
I-140	Immigrant Petition for Alien Worker	$580	$700

Adjusting/Changing/Extending Status 

There is also no cause for panic if you want to simply change or extend your status. This affects those that are here on temporary visitor or student visas such as B1/B2, F1, M1, or J1. Same with Adjustment of Status to that of a Permanent Resident after the USCIS has approved your family petition (I-130) or employment petition (I-140) and your priority date is current on the visa bulletin.

Form	Title	Old Fees	New Fees
I-485	Application to Register Permanent Residence or Adjust Status	$985	$1,140
I-539	Application to Extend/change Nonimmigrant Status	$290	$370

Waivers - Higher Increases

What we are concerned about for our clients is these new fees for the waivers of inadmissibility. For those of you who are not familiar with waivers, most of these require showing a exceptional to extreme level of hardship that could be suffered by a qualifying relative if the petition is not granted. By increase these fees by almost $350, it seems that USCIS is bent on adding even more "hardship" to the applicants and their relatives who are already suffering from extreme or exceptional hardship. Sympathetic to the plight of our clients, if we have to submit a waiver for your petition in 2017, we will give you a 10% discount, around $100 in savings.  

Form	Title	Old Fees	New Fees
I-212	Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal	$585	$930
I-601	Application for Waiver of Ground of Excludability	$585	$930
I-601A	Application for Provisional Unlawful Presence Waiver	$585	$630
I-612	Application for Waiver of the Foreign Residence Requirement (Under Section 212(2) of the INA, as Amended)	$585	$930
I-690	Application for Waiver of Grounds of Inadmissibility	$200	$715

International Entrepreneurs 

For your convenience, we have also included the following chart for those thinking about utilizing the EB-5 Investors Program to become a permanent resident of the country. The filing fee for the immigrant petition has more than doubled. But otherwise, the fees affecting individual investors have stayed the same, the majority of the increase comes from regional center certifications.

Form	Title	Old Fees	New Fees
I-526	Immigrant Petition by Alien Entrepreneur	$1,500	$3,675
I-829	Petition by Entrepreneur to Remove Conditions	$3,750	$3,750
I-924	Application for Regional Center Designation Under the Immigration Investor Program	$6,230	$17,795
I-924A	Annual Certification of Regional Center	$0	$3,035

J-1 Visa: Foreign Residency Requirement, No Objection Statement (China) and Exceptional Hardship Waiver

We recently worked on a J-1 Visa case where the young lady came here from China on a J-1 Visa, married a U.S. Citizen, and is now seeking a waiver for her foreign residency requirement. The wonderful thing is that J-1 Visas are a good substitute for the overused H-1B, as long as the employer hires through a sponsoring organization. This topic is beyond the scope of this blog, but please contact us if you are interested in finding out how you can do this.

There were several issues with the Foreign Residency Requirement...
First, the DS-2019 had checked the box specifying that she was "Not subject to the foreign residence requirement." However, the advisory opinion that the prior attorney received stated that she WAS subject to the requirement, because her "field of specialization is included on the Exchange Visitor Skills List for the exchange visitor's country." Here, the moral of the story is that you can't go by the DS-2019, you should request an advisory opinion, which would help clarify the situation. However, as with all issues in law, this takes time, about 4-6 weeks at the very least.

Why was there a prior attorney? 
The backstory to why the client came to us is that the prior attorney took too long to get back to them regarding this issue. With the fee increase happening on December 23, the client was getting anxious and began searching for an alternative immigration attorney. In this case, we were able to take care of it at a much lower cost and we got the petition in before the fee increase that took place on December 23rd. The fee increase would have raised the filing fee for Form I-612 (Exceptional Hardship Waiver) from $585 to $930!

Understanding the time-sensitivity of the situation, when this particular client contacted us, we got to work right away for her. We found out that we could file the No Objection Statement AND the Exceptional Hardship Waiver at the same time, to double her chances of getting her foreign residency requirement waived. To start the process, you have to fill out the DS-3035 Form from the Department of State and in the Statement of Reason, mention both reasons.

No Objection Statement 
We would recommend that you request a No Objection Statement from your home country's embassy in any case, unless you are a foreign medical physician and do not qualify.

To request a No Objection Statement from China is rather complicated as you do not request it directly from the Chinese Embassy, but from a non-profit organization affiliated with the Chinese Ministry of Education, the New York Service Center for Chinese Study Fellows, Inc. For more information on how to request, after completing the DS-3035, see J-1签证豁免. This is also where you would send the Third-Party Barcode page provided with the DS-3035, along with all their requested documents. 

Exceptional Hardship Waiver
Next, we had to address how the U.S. Citizen spouse could suffer exceptional hardship in the event that the J-1 spouse is forced to complete her foreign residency requirement. You have to address (1) how the U.S. Citizen spouse will suffer exceptional hardship if he leaves the country with the J-1 spouse, and (2) how the U.S. Citizen spouse will suffer exceptional hardship if the J-1 spouse leaves without him. And of course, corroborate everything you say with evidence to avoid further Requests for Evidence from USCIS!

In this case, we had a lengthy conversation talking about how the U.S. Citizen spouse's career would be disrupted, how he would be forced to leave his grandmother who suffers from Alzheimer's, how he himself suffers from a stress-caused illness that must be monitored carefully.

If all this information overwhelms you, that is why we are here, contact us at 617-871-0788 for help!

Sponsoring Your Relative as an Employee: Importance of Good Faith Efforts in PERM Recruitment

Our immigration law firm represents many small business employers, many of whom, for many legitimate reasons prefer to hire their family members to assume important functions in their businesses. On October 21, 2016, BALCA released decisions on two cases dealing with PERM labor certification and audits for hiring relatives, Tyrrell Limited on behalf of Espino, Jose Miguel Tantoco and Johnman U.S.A., Inc. d/b/a Karoke Champ, on behalf of Kida, Takuya, with opposite rulings.

Background

Most PERM employers know that hiring relatives is possible as long as there is a bona fide job opportunity and the job is made available to U.S. workers. The court considers the totality of the circumstances using the following factors outlined in the famous case of Modular Container Systems, Inc., looking at whether the employee:

1. Is in a position to control or influence hiring decisions regarding the job for which labor certification is sought; 
2. Is related to the corporate directors, officers or employees; 
3. Was an incorporator or founder of the company; 
4. Is involved in the management of the company; 
5. Is on the board of directors; 
6. Is one of a small number of employees; 
7. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and 
8. Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.

Why Tyrrell Limited On Behalf of Espino, Jose Miguel Tantoco and Johnman U.S.A., Inc. d/b/a Karoke Champ, On Behalf of Kida, Takuya Were Ruled Differently

Both cases deal with hiring a family member, one hires her son while other hires his brother. When a familial relationship exists between the employer and the employee, the employer must overcome the presumption that the employee's influence and control over the job opportunity is such that the job opportunity is not bona fide (not open and available to US workers). In this case, Kida was unable to overcome that presumption while Espino could. We explore why in the paragraphs that follow.

Both employers are closely-held, family-owned companies, with high chances of audit. Both had followed the recruitment procedure correctly. The Certifying Officers had determined, in both cases, that the foreign employees had the authority to make interviewing and hiring decisions. What made BALCA determine differently?

First, in Espino, the employer had stated that the role of the Officer in Charge (OIC), the employee's position, includes taking over exigent tasks when the General Manager (GM) is unavailable.While the GM's tasks include interviewing and hiring potential employees, these would not be considered "exigent tasks" and can wait until the GM returns. As such, the OIC's tasks would not include interviewing and hiring employees. BALCA agreed.

In contrast, Kida was hired to fill three titles, head of the Management Division, head of the Finance Division, and the head of the Division of Store Development. As the head of the Management Division, Kida also oversees the Human Resources Department, which is responsible for the company's interviewing and hiring. The court held that these titles held essential functions of the company and considered the employee as "inseparable from the sponsoring employer," which was the last factor provided in Modular Container Systems, Inc.

What Ultimately Led The Employer Astray: The Inconsistencies in Kida's Petition

What became clear to me as a lawyer is the court's enumeration of the inconsistencies in Kida's petition, which, I think, ultimately led BALCA to conclude that there was no bona fide job opportunity. Here are some of the inconsistencies the court mentioned:

1. In the organizational chart, one of Kida's three titles was the head of Management Division of the company, which is responsible for the actions of the Human Resources Department.  However, the employer made inconsistent statements throughout the application, once claiming that the Human Resources Department was autonomous in making hiring decisions, and another time claiming that the President/CEO was the primary decision-maker.
2. The organizational chart submitted with Kida's petition stated that the company had thirteen employees, while the ETA 9089 stated that the company had six employees.
3. The organizational chart showed that Kida would hold multiple management titles in the company, presenting him as a key player. However, the labor certification application stated that no experience is necessary and provides for basic accounting duties. This inconsistency suggested that his actual job position was not accurately presented in the labor certification.

These cases make clear that when sponsoring your relative for a position in your company, it cannot be handled carelessly, you need an attorney to ensure consistency across all the documents and forms submitted to the Department of Labor and USCIS. Between the ETA 9089, the job postings, and the supporting documents for the I-140 petition, consistency is crucial. If you are planning to hire a relative to fill one of your company's positions, contact our law office to see how we can help ensure that the information for these documents are entered correctly!

Five Ways for International Entrepreneurs to Stay and Work In the U.S.: No Need to Depend on Employer Sponsorship!

With the increasing interest in the pending Parole for International Entrepreneurs Rule, entrepreneurs from other countries are unaware that even before this rule, there were many ways to start your own business and stay in the U.S. Here are some of the methods to allow those that are here on temporary visas, student visas, or other work visas to do just that:

1. OPT Allows for Self-Employment. There are no rules preventing someone pursuing OPT to also pursue self-employment. As long as the business is in the same field of study as the program which the student pursued through his F-1 visa, he would be able to work for himself. Beware of the line between what you are allowed to do while you are completing your program on F-1 and what you are allowed to do while on OPT. You cannot work while on F-1, however, you would be "working" through your OPT. As such, the question becomes whether setting up your own business would be considered "working," therefore violating the terms of your F-1 visa.

2. H-1B Petitions Require Employer-Employee Relationship, But Does Not Prevent Self-Employment. You may start a business and in turn sponsor yourself for the H-1B status. The difficult hurtle is that you will need to show that you are an employee of the company that you have started. This means that you must vest the control of your own company in a Board of Directors or, through the governing documents, show that you do not have majority ownership. Through the latter method, USCIS must understand that although you started the business, other owners comprise of the majority, have decision-making power, and have the ability to fire you or take the company from you.

You may also apply cap-exempt if you can show that your business works "directly" and "predominantly" with a non-profit organization or an university or is employed by a non-profit organization or an university. Alternatively, over the course of a couple of months, Global Entrepreneur In Residence programs have became the norm in universities all over the country. Here are some of examples of the success of this program: Babson College GEIR, UMass's Venture Development Center, and Harvard Business School's Rock Center. Entrepreneurs working with these programs are also able to start their business and apply for H-1B cap-exempt.

3. E-2 Treaty Investor Visa – If you are a citizen of one of the treaty countries, you may use this visa to enter or stay in the U.S. to start a business. This visa functions similar to the popular EB-5 except with far less regulations and less scrutiny around it. One major advantage of the E-2 visa is that it costs much less than the EB-5, there is no minimum capital investment amount required to qualify. The investor would only need as much capital as is required to start whatever business he wants.

4. Self-Petition For EB-2 (Exceptional Ability) with National Interest Waiver. If you qualify for the National Interest Waiver (NIW) under the Employment-Based Second Category, you would not need an employer to petition for you. According to Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm’r 1998), a petition seeking NIW must show that (1) you plan on working in the U.S. in an area of substantial intrinsic merit, (2) the proposed impact of your work is national in scope, and (3) waiving the labor certification requirement would benefit the national interest. 

5. Of course, the New Parole for International Entrepreneurs Rule. Our firm is keeping a close eye on this rule and will provide an update to our readers as soon the public comments period is complete. We will also be updating our practice areas to include this rule at that point. Read the reasons why we are so excited here: Five Reasons We Are Excited For The New Parole For International Entrepreneurs Rule.

Our law firm regularly advises clients on the issues mentioned above. Contact us today to see how we can help bring your ideas to reality and obtain legal permanent residence. 

Five Reasons We Are Excited For The New Parole For International Entrepreneurs Rule

We are so excited about this new rule that we cannot wait until it is published in the Federal Register to write about it. The USCIS began taking comments yesterday. We encourage our readers to submit their thoughts to USCIS, the crucial impact of this program cannot be underestimated. You can read about the proposed rule and send them your comments by using the green button in the upper right-hand corner. They will be taking comments until October 17, 2016. at which time they will begin addressing the comments. The rules will not become final until the date specified in the final rule, which will be published in the Federal Register.

This program for international entrepreneurs is similar to the EB-5 program in terms of its focus on economic growth and job creation. However, the threshold is much easier to fulfill. It focuses on provisions to startup founders, so the regulations require little resource to be granted parole. Here, we would like to provide some highlights of the program and the reasons for our excitement.

One: Low Threshold Initial Requirements
In order to be a parolee in the program, you must have formed a startup entity recently. The USCIS defines "recently" to be within the 3 years preceding the start date of the filing of the initial parole application. Additionally, you must have "lawfully done business" since the creation of the startup entity. USCIS will also analyze the startup's potential for rapid growth and job creation. While we specialize in immigration, if you have any questions regarding entity formation, we are also able to offer advice.

The second requirement is that USCIS requires the applicant to show that he/she is an entrepreneur of the startup company. This means that he or she "(1) possesses a significant (at least 15%) ownership interest in the entity and (2) has an active role in the operations and the future growth of the entity. The last requirement is that you must have received significant "investment from established U.S. investors or government funding. In order for the investment to be "significant," the capital invested must total $345,000 or more from established U.S. investors (such as venture capital firms, angel investors, or start-up accelerators). Alternatively, you must show that your startup has received government grants totaling $100,000 or more. However, these numbers are not strict requirements.

Two: Flexible Funding Requirements
According to the proposed rules, partial government grant or private funding under the dollar amount threshold is allowed if the applicant can bring additional "compelling" evidence that the entity would provide a significant public benefit to the U.S. "Public benefit" seems to hinge on whether the entity shows a substantial potential for rapid growth and job creation.

Although USCIS has not provided examples of evidentiary documents in the proposed rule, we are closely tracking the future publication of any policy guidance memorandum regarding this rule and will update the public accordingly. We presume that in order to show an entity's potential for growth and job creation, the evidence will involve economic analysis similar to the requirements to show potential for job creation in an EB-5 petition, though at a lower standard of proof.

Three: Continuation of Parole
Under the proposed rule, the initial grant of parole is for 2 years. However, USCIS will grant a continuation of parole for another 3 years if the applicant can demonstrate that the startup entity has continued to operate soundly for the last two years and will continue to operate as such into the foreseeable future. The applicant must also continue to be an entrepreneur in that they own at least 15% of the entity and has a crucial managerial and operational role in the business entity. Specifically, the applicant must be able to demonstrate that his/her entity has show signs of significant growth since the initial grant of parole and will continue to sustain rapid growth and job creation.

Four: The Rippling Effect
With parole, the entrepreneur's spouse and children will also be able to stay in the U.S. while the entrepreneur builds his/her business. Their spouse will be able to work and earn a living, so that the entrepreneur can focus his/her resources on the startup entity to grow the U.S.economy in the long term. Their children would be able to attend some of the world's best schools here in the U.S., which in turn, would provide for the most potential for keeping many generations of the best talent in the U.S.

Five: Focus on Economic Growth
Recall our post about the Start-up Visa, this program is not quite the Start-up Visa, but it is vastly similar. All the reasons I mentioned in that article, regarding stopping the brain drain, encouraging innovation, and the contributions to economic growth would of course also apply here.

Contact our law firm if you have any questions regarding this new rule. We will be keeping a close watch on its developments.

How Can You Avoid The Frustrations of The PERM Recruitment Process?

Our firm had an consultation with a company regarding the PERM recruitment process and as a result of the convoluted and outdated process, the employer was not able to hire a foreign national. It was extremely unfortunate because they thought she was the perfect fit for their business needs. However, because of the lengthy PERM Labor Certification process, they could not hire and train her in time. As a result, the foreign national had to plan to leave the country once her H-1B expires and back to the drawing board for the employer. This is just one example of many of how the immigration process contributes to the U.S. talent drain.

Here, we explain the convoluted process to you and why you must retain an immigration attorney from the beginning, the job description drafting process.

General Timeline
The PERM recruitment is a long process and could take anywhere from 6 months to a year, maybe even longer if your file has been randomly selected for audit. Under the current rules, the recruitment process must begin 30-180 days before the submission of the PERM Labor Certification application with the Department of Labor (DOL). After the submission, under the current processing time, it takes 3 months for the DOL to process your application. After the application has been approved, if you have a good immigration attorney working with you, the I-140 and its related documentary evidence should not take long to compile.

However, the I-140 wait time could be another year before the employee is able to start working for you. For this reason, we would always recommend premium processing for our employer clients to speed up the wait time to a mere 15 days. This is the only fee that can be paid by your potential employee to lessen the expenses that are associated with the immigration process.

However, if the I-140 has been pending for a year, we recommend using the H-1B extension option under AC21 (provided, of course, that the candidate had a H-1B visa before). Even if the visa is expired or the candidate had used up the 6 years limit, having a I-140 of a Labor Certification pending for 1 year will allow the candidate to work for you using her H-1B extension. Alternatively, once the I-140 is approved, the candidate can also file for the H-1B extension to work for you. For more information on the H-1B extension, which should take about a month (with premium processing), see: Exceptions to the H-1B Six-Year Limit Under American Competitiveness in the 21st Century Act of 2000 (AC21).

Even with the H-1B extension under AC21 and the premium processing option, however, the wait time from the PWD stage until the time that the employer can hire a foreign national to work for them is still at least 5 months!

PERM Recruitment Requirements
Thirty to one hundred and eighty days prior to the filing date of the application, the employer must obtain a prevailing wage determination (PWD), using the job title and description, and begin the recruitment postings. The PWD can be obtained through a government survey, such as the Foreign Labor Certification Data Center.

The recruitment requires 2 postings in a Sunday newspaper (who even reads these anymore?) and 30 days of posting in the State Work Agency (SWA) Job Bank. In Massachusetts, the job bank posting must be on Massachusetts JobQuest. Additionally, if the position is for a professional occupation, the recruitment must also take place in at least 3 of the 10 areas mentioned on Form 9089: employee referral programs, employer's website, job fairs, third-party job search websites, on-campus recruiting, trade or professional organizations, private employment firms, notice of the job opening at a campus placement office, local and ethnic newspapers, and radio and television advertisements. The specific information requires in the job postings is beyond the scope of this article.

Contacts and Interviews
During the recruitment, you must keep all records of your efforts to contact applicants. You also must interview U.S. workers who meet the minimum requirements for the position and you must document all rejections. Rejections must be for job-related reasons. As such, you cannot reject a candidate based on the lack of training, if the training can be provided on the job. You also cannot reject a candidate based on his/her distance from work, if they are willing to travel.

We understand that most of the time, the recruitment process for PERM does not align with your company's recruitment process. However, this is simply a requirement you must follow if you wish to employee a foreign national outside of his/her H-1B term. As such, we would recommend building this process into your regular recruitment process.

If your business depends on foreign nationals with advanced degrees or skills, you need a good immigration attorney to work with you from start to finish to ensure that the entire process is completed correctly,  Working with an attorney can save you a lot of headache and resources in the long run. Otherwise, once you find a candidate that is a perfect fit for your business needs, it may be too late to begin PERM. Zhang-Louie, Immigration Legal Counsel consults employers on the PERM process a regular basis, contact our firm to see how you should start your recruitment.

Exceptions to the H-1B Six-Year Limit Under American Competitiveness in the 21st Century Act of 2000 (AC21)

My previous post, Is My Potential Employee Cap-Exempt?, explains the six-year limitation for an employee working under H-1B and the concept of recapturing unused time. This is a follow-up to explain the options that may be available for those H-1B employees that are approaching the end of their six years or have exhausted their six years.

American Competitiveness in the 21st Century Act of 2000 (AC21) has two important implications for H-1B employees: (1) a "one-time" protection for H-1B employees by extending their H-1B visa in 3 year increments if the I-140 has been approved under section 104(c), and (2) one-year extensions are available if prior to the exhaustion of the beneficiary's H-1B time, the beneficiary's PERM application or the I-140 petition had been pending for more than 365 days under section 106(c).

Section 104(c): One-Time Protection

Section 104(c) allows the H-1B employee to obtain a "one-time" protection to extend their H-1B visa if their inadmissibility into the country was due only to the fact that they could not apply for adjustment of status because of the per country ceiling imposed by the Department of State. Once their I-140 is approved, this section allows the employees to obtain extensions of their H-1B in 3-year increments and work in the U.S. until their priority date on the visa bulletin is current for adjustment.

It is important to note that although Section 104(c) provides for a "one-time" protection, the petitioner may continuously apply to extend the H-1B status of the beneficiary so long as the two requirements are met. The requirements are merely that  (1) the beneficiary has an approved I-140, and (2) the only reason the beneficiary cannot adjust status is because of the per country limitations provided in the visa bulletin.

Additionally, the usage of the word "extension" is a bit of a misnomer as the option is available for those H-1B beneficiaries with an expired H-1B visa also. It is more of a "renewal" of the old visa in increments of three years, until your priority date is current for you to adjust your status to obtain your green card. Moreover, this extension is available for beneficiaries regardless of whether you are outside the U.S. or not. Of course, if you are outside the U.S., you must bring the approved H-1B visa extension petition to the U.S. Consulate in your home country to be processed for your entrance back into the U.S.

Section 106(a): One-Year Extension

The second exception to the six-year limit provides for extensions in one year increments, if the PERM Labor Certification or the I-140 petition has been pending for more than 365 days. Like the "extension" under section 104(c) above, the petitioner may also file for the extension if the beneficiary is outside of the country awaiting adjudication. However, as the regulations state the Labor Certification or the I-140 petition "must have been filed at least 365 days prior to the date that the beneficiary will have exhausted the 6 years of H-1B status in the U.S.," this extension petition is almost always filed before the exhaustion of the 6 years limit, while the beneficiary is still in the U.S. working for the petitioner.

Some other requirements for the approval of the H-1B extension are  that the labor certification is not expired at the time of filing for the extension and that, but fore the delay in the adjudication, the extension and the I-129 petition are otherwise approvable.

There are also strategies where you may be able to use recaptured time as outlined in Is My Potential Employee Cap-Exempt? to extend your H-1B expiration date to meet the requirement that the Labor Certification or the I-140 must have been filed 365 days prior to the exhaustion of your H1B.

If you believe that you may qualify for these extensions, please contact us to see what we can do for you.

Four Reasons That The Next POTUS Must Move Forward the Startup Act

The next president must make passing The Startup Act one of their priorities as a presidential candidate. This would be one giant step towards immigration reform and to really leverage the power of international talent to improve our economy. Here is why...

One: Stop the STEM Students Brain Drain 
Studies show that more STEM students here in the U.S. are foreign compared to those that are U.S. Citisens. It is concerning when "we bring them here, we train them, then they leave," according to Vince Bartram, president and CEO of Project Lead the Way, as quoted in the U.S.News article. The reason that most of these students leave after their studies is because they could not find jobs to maintain their immigration status in the U.S.

The Startup Act would provide conditional permanent residence for these students for up to one year after the expiration of the students' F-1 visa as long as they are "diligently searching for an opportunity to become actively engaged" in a STEM field. Let's face it, in the current economy, a couple of mouths of grace period is not enough for the students to find job opportunities. This solution allows the foreign national to stay here for one year while searching for a suitable job.

Two: Encourages Continuing Innovation
In addition to the one year job search opportunity, this Act also provides the foreign nationals with an additional incentive to stay in the STEM field without going through their employers. So long as they are "actively engaged in a STEM field," they would be eligible to remove the conditions on their permanent residence in five years.

In many instances, a foreign national here on H-1B may be forced to leave once their 6-year term is over, if not earlier. In many instances, however, innovations may take more than 6 years for them to become viable. Many employers would be caught between coming up with the money to file for employment-based immigration petitions to sponsor the H-1B innovator or letting them go. For startups, having funding is the the foundation of their existence, so coming up with the sponsorship may not be possible.

This Act would allow those foreign national innovators to stay here and continue working on their inventions past 6 years. They would be eligible to remove the conditions on the permanent residence, as long as they are (1) gainfully employed in a STEM field, (2) teaching courses in the STEM field, or (3) employed by a government entity. In this way, the foreign national would be free to innovate and contribute to the country's growth, without fear that they would have to leave the U.S. in a number of years.

Three: Small Business Ownership
The Act encourages foreign national entrepreneurs to start their own businesses in the U.S. in order to boost the economy. Much empirical evidence is out there showing that small businesses are the backbone to our economy, here are the facts to back that up. There is also much evidence to show that immigrants are driving small business growth in the U.S. This Act ties up the loose ends and allows foreign immigrants to start businesses in the U.S., contribute to economic growth, and become legal permanent residents in the process.

It provides constant checks to ensure that the foreign national is contributing to local economic growth before removing his conditions to permanent residence 5 years later. In order for a foreign national to maintain his conditional permanent resident status, he must register a business during the first year of his immigrant visa. Subsequently, he must employ at least 2 full-time employees unrelated to him. And lastly, he must employ at least 5 full-time employees who are not relatives of the foreign national within 4 years of receiving his immigrant visa. Towards the end of the four years, the foreign national would be eligible to remove the conditions on his permanent residence.

This option provides a similar program to the EB-5 direct investment, only more achievable to the middle class entrepreneurs and less scam-ridden. We know the benefits that EB-5 direct investments have provided to our economy, this program could only help.

Four: Other Countries Are Using This, Why Not Us?
Last but not least, here is a list of just some of the countries already utilizing the startup visa and immigrant entrepreneur programs to improve their economy: Canada, United Kingdom, Australia, France, and Italy, among many others. If the U.S. does not implement this Act, we will lose our best and brightest STEM students and entrepreneurs to these countries. It is time the U.S. stops pondering the reasons why we should have this program and start asking why not.

Follow us @ZLImmigration as we closely track this development in the law.

Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. Embedded in Cambridge's innovative culture, we understand that particularly for startups, finding the most qualified employees and your own immigration issues can be unnecessary distractions, keeping you from your innovations. We are here to provide you guidance and counsel on hiring globally and ensuring that you can stay in the U.S., so that you can focus on growing your business. 

Ombudsman Recognizes Immigrant and Non-Immigrant Employees Should Have Standing, No Guidance From USCIS

The Office of Citizenship and Immigration Services Ombudsman (the "Ombudsman") presented their 2016 annual report yesterday. Our office aims to highlight one unsettled issue regarding the rights of the employee to have standing as the beneficiary in the I-140 and H-1B petitions. We have received numerous inquiries from beneficiary employees regarding their rights and their lack of information about their own cases. At this time, unfortunately, we must continue to reluctantly turn them away by stating that they have to communicate their issues with their employer.

USCIS must be made aware that deciding whether the employees have standing in their own cases is a pressing issue and must move forward on providing guidance to the stakeholders.

In the event that the petitioner-employers fail to cooperate with the beneficiaries in providing notices or answering the Requests for Evidence (RFEs), then the beneficiaries are left in the dark about their immigrant statuses. Without this information, beneficiary-employees would be unable to make informed decisions about their lives. Decisions that U.S. Citizens take for granted, such as where to move to next month, do I need to go to another country, where would my children go to school, would be on hold for them.

While the Ombudsman is aware of this issue, USCIS still has not moved forward in determining how immigration attorneys can advocate for beneficiary-employees when their employers are refusing to cooperate.

Legal Support For Employee's Rights
The America Competitiveness in the Twenty-First Century, S. 2045 Act (AC21) and The White House Report, Modernization and Streamlining Our Legal Immigration System For the Twenty-First Century, published July 2015 (the Modernization Report) both support the idea of providing the beneficiary-employees with the right to receive notices directly from, and to respond directly to, USCIS.

AC21, Section 106(c), specifies that an "alien has the right to receive a notice of action on an I-140 once an accompanying adjustment of status has been pending for 180 days or more. Furthermore, once this right to notice vests, an alien may provide evidence in response to a request for evidence or notice of any other adverse action on the underlying visa petition." Additionally, even if a beneficiary changes employers, any unadjudicated adjustment of status that has been pending for at least 180 days will continue to be the basis for permanent residence. The AILA-USCIS Benefits Liaison Committee Memorandum, published March 18, 2004, explains that "so long as the initial petition was bona fide and non-frivolous, no further inquiry may be had regarding the employer’s ongoing ability to pay or intent..."

The Modernization Report states that "[w]hile waiting for these immigrant visas, many nonimmigrant workers may be effectively prevented from changing jobs or receiving promotions, thus hindering natural career progression and the ability to make other long-term life plans. This stagnancy for years on end not only negatively impacts the beneficiary’s economic stability, but also impacts the economic growth of local communities and our nation." Thus, allowing the employees more power in their own immigration processes would allow more employee mobility, which would lead to increases in this country's economic growth.

As such, both the AC21 and the Modernization Report recognizes that employer-employee relationships may breakdown during the time that it takes for USCIS to adjudicate the I-140 and the adjustment of status. Furthermore, to prevent the employee from working on his/her own case or to prevent him/her from searching for another employer without jeopardizing his/her immigration status is to keep him from the simple liberties that U.S. Citizens often take for granted, the freedom of employment mobility, the freedom to determine what happens to their lives and the lives of their families.

Our immigration law office continuously receives inquiries from employees regarding what they should do when their employer-employee relationship breaks down and they want to find another job. There is currently no progress towards allowing them to independently get notices, talk to USCIS regarding their petitions, or answer their RFE's, We join the Ombudsman in urging USCIS to move towards allowing the employees themselves to take action for their cases and to give the employees a voice.

Follow us on Twitter (@ZLImmigration), Facebook (zlimmigration), or LinkedIn as we track this development.

H-3 Visa As An Alternative to H-1B

As promised in my tweet earlier, here is a report on the H-3 visa as an alternative to H-1B. First of all, special thanks to Margaret Holland-Sparages, a Senior Associate at Deutsch Williams, for sharing your experience and knowledge with the attendees. It really is a great and under-utilized program and I will very likely be suggesting this program to those of my clients that are concerned about the H-1B quota and the H-1B rejections. Below is a brief background of the program and why this program should be considered.

Background

Under INA Section 101(a)(15)(H)(iii), H-3 visas are granted to temporary workers "invited by an individual or organization for purposes of receiving instruction and training 'in any field of endeavor...other than graduate medical education or training.' The training program must be one that is not designed primarily to provide productive employment." Chapter 5, Kurzban's Immigration Law Sourcebook, 14th Ed.  

In order for your H-3 petition to be approved, among many other requirements, you must prove that the beneficiary cannot obtain the training in her own country, that the program does not exist in the her own country, and that it is unique to the degree in the U.S. You also must prove that the H-3 beneficiary will not be a productive member of your company, due to the required training process. Importantly, you must show that this training program is required for a number of employees at the company and was not implemented just for the purpose of obtaining the H-3 visa. 

This Program Should be Considered Because...

As every immigration practitioner and every H-1B-dependent employer recognizes, H-1B is an exhausted program. For many years, the 65,000 quota has been filled within the first week of April. This leaves many qualified foreign nationals here on F-1 status with no options but to return to their home countries upon the expiration of their F-1 status. Simply because of the inadequacy of our H-1B program, many talented individuals leave the U.S., leading to a waste of our resources as we spend to train them only to have them leave and contribute to the growth of other countries. Without an expansion of the H-1B quota and without considering the alternatives, the decision of which talented individual stays and which one leaves is left to chance (i.e. the H-1B lottery).

The H-3 program should be utilized for many reasons. I name only a few here. First, the lives of international students and the well-being of the U.S. economy is too important to leave to chance. Second, the high demand for STEM talent is vastly unsatisfied and H-3 can help fill that gap. Last, but definitely not the least, this program will provide these highly qualified individuals a chance to stay and another chance for the H-1B lottery or an alternative employment-based visa at a later year.

Even if your beneficiary has been selected in the H-1B lottery, there is another level of review to see whether he/she meets the requirements of H-1B. If she is ultimately denied the H-1B, the H-3 program should also be considered in order to allow her to stay here and utilize her talents, for the same reasons mentioned.

Training and The STEM OPT Extension

As mentioned above, in order to use the H-3 visa, the foreign national must be here for a training program. The training requirement should be easily satisfied for a F-1 beneficiary who has been here for 12 months of OPT. The main argument to use is that 12 months is not nearly enough to fully train someone for the workforce. Of course, the evidence provided to prove that would be different for each case.

However, please note that the USCIS will deny the H-3 visa if the beneficiary already possesses substantial training and expertise in the proposed field of training. This raises the issue of the new 24 month STEM OPT Extension. It will be substantially more difficult to argue that the H-3 beneficiary still needs further training after three years in her field of specialty. However, Mrs. Holland-Sparages suggested the wonderful idea of arguing that new training is needed because of technological advancements or new scientific discoveries, which is definitely not a problem in the STEM fields!

In creating the training program for the H-3 petition, it should state the reasons that the training is required to extend to a specific length of time beyond the OPT period. Moreover, there are many other requirements that should be outlined, such as the kind of training to be given, the level of supervision to be given, and the structure of the program. These issues should be considered with an immigration attorney. we would be able to talk about exactly how to draft the training program to meet the needs of the H-3 program.

Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. Embedded in Cambridge's innovative culture. we understand that particularly for startups, human resource issues such as where to find the next qualified employee can be daunting. We are here to provide you guidance and counsel on hiring globally so that you can focus on growing your business. 

Pokémon Go, the Masuda Method, and Immigration

Pokémon Go was released a little less than two weeks ago and it is already the most reported subject in the history of Google.  I am a Millennial, and like many Millennials out there, we were the first to learn of these mythical creatures almost 20 years ago.  We have all dreamed of one day capturing them all.  Today, that dream is almost a reality.  These little pocket monsters simply show up in front of us when we turn on our phones!

But, the question now is how do we really capture ALL OF THEM?  Sure, there are ways to travel within your country to catch as many as possible.  Experts say that you have a higher chance of catching water Pokémon near bodies of water, fire Pokémon near the desert, and some Pokémon are just everywhere.  If I see another Rattata...

But how do you capture the truly rare ones...like a Shiny?

What is a Shiny? 

Blue Gastly? That would be a Shiny!

Shinnies first appeared in Generation II, Gold and Silver.  From my limited knowledge, shinnies are extremely rare Pokémon that appear as a different color from the regular Pokémon, for example a green Rattata or...a gray Jigglypuff.  These can be caught either in the wild or by cross-breeding internationally through the Masuda Method (appropriately named in Japanese: 国際結婚 international marriage).  The chances of catching them in the wild is about 1 out of 8192 in the older games.  However, tech blogs are hinting that these will be available in Pokémon Go.

The Masuda Method
The Masuda Method appeared in Generation IV (2007 - Diamond, Platinum, Pearl - way after my time), named after Junichi Masuda, the Game Freak director who inserted the method into Diamond and Pearl.  The Masuda Method requires the breeding of two Pokémon of different genders and from different regions (the game recognizes this by registering the different language of the Pokémon's name).  This method increased the likelihood of getting a shiny by SIX TIMES.

If this method is to work in Pokémon Go, we would need to not only implement trading between players of the same country but also to enable players to trade internationally and to catch Pokémon all over the world.  With the way this game is developing, this feature just might be a reality sooner than we think.

If the need for international travel becomes a reality in this game, the U.S. Department of State provides a number of visas to travel to the U.S. with plenty of time to travel through the country and catch all the Pokémon with English names you need.

Visa Waiver Program
The Visa Waiver Program allows visitors from certain countries to travel to the U.S. without obtaining a visa, as long as they obtain approval from the Electronic System for Travel Authorization (ESTA).  Visitors from qualified countries can visit for tourism or business reasons for up to 90 days!  As such, visitors from countries such as South Korea, Italy, Japan, and Singapore can visit the U.S. with very little government-mandated travel preparation.  See the Department of State's website for more information and for a complete list of countries qualifying for the VWP.  However, the same legal requirements under B-1 (business) and B-2 (tourism) visas apply; most importantly, the foreign national must prove non-immigrant intent.  So, you should speak with an immigration attorney regarding which facts would show that your stay in the U.S. is only temporary.

Visitor's Visas
If your home country is not listed as a VWP country, you can still enter and stay in the U.S. for up to 90 days.  For more information, visit our website.  If you ultimately discover that you need more time to catch all the Pokémon in the country, you can file I-539 to extend your stay.  However, both the length of extended stay and the approval of your extension request are subject to the adjudicator's discretion.  As such, we would highly advise that you have an alternative reason for the extension request, perhaps something other than that you need more time to catch them all, however pressing that task may be.


Disclaimer: This post is for firm marketing purposes only. The poster does not claim to be an expert in the game Pokémon Go in any way and apologizes for any misstatement in the functionality of the game. However, we welcome comments to correct any misstatements or any thoughts on the post.

Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. We advise startups on hiring and retaining global talent so that they can focus on growing their business. 

EB-5 for Startups and Entrepreneurs

For EB-5's, most investors or business people think of large real estate development projects, having $500K or $1 million in money readily available to invest, and immediately creating those 10 jobs that are required to get permanent residence. This is largely a generalization of this underutilized program.

If you are a foreign national considering starting a business here in the U.S. and you would like to eventually obtain permanent residence, an EB-5 immigration path is worth considering. Here are some of the issues that you should consider with an immigration attorney at the outset.

Loans as a Legal Source of Funds
You do not need to have the entire $500K or $1 million readily available, you may take out loans in order to invest in your business. However, you must own the assets that you use to collateralize the loan. USCIS will frequently issue Requests for Evidence (RFEs) requesting more information on your ownership of the collateral if your application shows that your source of funds includes loans.

For example, if you own real property and are thinking about either selling the real property to obtain funds or using the property as collateral, USCIS will want to see documentation showing that the property was initially obtained with legitimate funds. If you are using the property as collateral for your loan, USCIS will additionally request documentation of the loan or the mortgage contract and documentation to show that the value of the property is such that it will support the amount of the loan. 

Incremental Investments
If you do not have the funds for an EB-5 investment initially, you can invest in your business in incremental investments so that your total investment meets the $500K or $1 million required for an EB-5 petition. This strategy is beneficial for startups that do not have the funds initially but grow to become profitable later. For EB-5 investment purposes, entrepreneurs have the option to use the profits from the business and reinvest back into the business, so as to add to the total amount invested in the business.  

Word of caution for those using this strategy: investors still must prove that the source of funds came from them personally, not from the business. As such, investors must show that they have taken a distribution from the profits of the company as their own income and then reinvested that distribution back into the business.  

No Time Limit For Job Creation
The requirement that the 10 jobs must be created within 2.5 years is a common misconception. There is no requirement that 10 jobs must be created at the time of the filing of I-526, or even at the time of filing for I-829. The purpose of the EB-5 is economic development. USCIS understands that for startups, it may take years for them to sustain 10 jobs. For startups then, the focus of USCIS's inquiry shifts to whether the business will continuously and increasingly sustain "full-time" and "permanent" positions.

The employees that qualify for "full-time" must work at least 35 hours per week for your business. With all the other business issues that startups often face, it is understandable that EB-5 requirements may fall to the wayside. However, if you are or are considering using your business as a EB-5 investment to get your permanent residence, ensure that you maintain the documents for those that are hired from the beginning (i.e, the pay stubs and the job descriptions of your employees). This will make the EB-5 approval process much less cumbersome. 

Qualifying Relationships 
Many startups turn to friends and family for assistance in running their business. While the EB-5 regulations do not restrict you in who you can hire, it requires that the business must create "full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant's spouse, sons, or daughters)." INA §203(b)(5)(A)(ii) (as quoted by Susan L. Pilcher in "Preserving the EB-5 Option for the Entrepreneur: Strategic Considerations for Startup Counsel," Immigration Options for Investors and Entrepreneurs, 3rd Ed. 2014). 

Immigrants "lawfully authorized to be employed in the United States" include conditional residents, temporary residents, asylees, refugees, or aliens remaining in the United States under suspension of deportation. 8 CFR §204.6(e). Therefore, you may not use your immediate family members or any one here on non-immigrant work visas such as H-1Bs or L-1s to count towards the jobs creation requirement.  

Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. Embedded in Cambridge's innovative culture. we understand that particularly for startups, human resource issues such as where to find the next qualified employee can be daunting. We are here to provide you guidance and counsel on hiring globally so that you can focus on growing your business. 

Is My Potential H1B Employee Cap-Exempt?

As our law firm begins to accept and work on new H1B petitions, many of which are filed subject to the 65,000 cap, it is important to remember that potential employees with petitions filed within the last 6 years could have their H1Bs refiled cap-exempt. Taking advantage of this exemption could provide H1B-dependent employers with unparalleled benefits when continuing to employee or when hiring a foreign national.

Background
The INA mentions that the period of authorized admission for a nonimmigrant entered through the H1B visa may not exceed 6 years. INA Section 214(g)(4). Additionally, "any alien who has already been counted, within the 6 years" before the approval of the new petition will not be counted again toward the 65,000 unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed.  INA Section 214(g)(7).

Moreover, 8 CFR Section 214.2(h)(13) specifies that a new H1B petition may not be approved unless "the alien has resided and been physically present outside the  United States...for the immediate prior year." We note that the same section also mentions that brief trips for business or pleasure would not count when considering whether the foreign national has been outside the U.S. for one year. What are considered to be "brief trips" would be considered on a case-by-case basis and is beyond the scope of this blog. You should consult an immigration attorney if you believe this may be an issue.

Application

Our understanding is through analyzing the USCIS memorandum on the "Procedures for Calculating Maximum Period of Stay Regarding the Limitations on Admission for H-1B and L-1 Nonimmigrants" (The USCIS Memo). In order to help employers understand this very confusing but advantageous subject, we have created a flowchart attached to this blog. Following this chart, employers can understand which options are available for the particular H1B candidate.

To understand your options, we begin with the basic question: Has your potential employee ever been approved  for H1B subject to the cap?

If your answer is no: Then the only option would be to apply for a new H1B and count against the cap, unless you are a cap-exempt employer, which will be the topic of a later blog on H1B.

If your answer is yes: Then the next level of analysis becomes whether he was approved more or less than 6 years ago. If the prior H1B for the foreign national was approved more than 6 years ago, then he must apply subject to the cap. However, in order for him to be eligible to apply, he must also have resided outside the U.S. for the immediate year prior to his petition.

Alternatively, if the prior H1B was approved less than 6 years ago, then he would be able to apply cap-exempt regardless of whether he has never entered the US or has entered the US and used time on his H1B. If he never entered the U.S., then he would be eligible to apply cap-exempt and be eligible for the full 6 years, subject to the discretion of the adjudicator.

However, if he has entered the U.S., made himself available to work for an employer within the last 6 years, and left more than a year ago, then he would have more choices. In that event, he would be able to either (1) apply cap-exempt and recapture the rest of the unused time OR (2) apply for a new H1B subject to the cap. If you choose to apply for a new H1B, then he would be able to work longer, if approved. Of course, if you are a cap-exempt employer, you should always choose the latter, as a new H1B would then be granted for the full 6 years.

If he left the U.S. less than a year ago, however, then the only option would be to apply cap-exempt and to recapture the unused time.

Recapturing Time
If you and the foreign national wish to use and is eligible for the recapturing time option, you must submit documentation to demonstrate that he was outside the U.S. for the period of time that is requested to be recaptured. The USCIS Memo suggests that the "burden of proof rests with the alien to establish his or her eligibility for any recapture benefits." Thus, the foreign national must prove that he was outside the U.S. for the requested time. The type of documentation required may depend on his particular situation.

Contact our law office to talk about your options and to see whether your beneficiary's documents are sufficient.

Can Employers Sponsor Relatives For Employment-Based Immigration? Understanding The PERM Process Through A Recent Case.

The short answer to that question is yes. However, as shown by the recent case released by the Board of Alien Labor Certification Appeals (BALCA), Matter of Palm Café Restaurant, the answer is not that simple.  AILA Doc. No. 16061303 (June 7, 2016). In adjudicating the appeal of a denial of PERM labor certification, BALCA has determined what would be considered a "bona fide job opportunity" under the PERM process, regardless of the familial relationship between the employer and the employee. 

Legal Background

The Program Electronic Review Management (PERM) Process is required for those employers petitioning under the EB-2 and EB-3 preference categories. Before the EB-2 and EB-3 petitions can be filed for an employer to sponsor a beneficiary employee for Legal Permanent Resident status, employers must obtain the PERM labor certification from the Department of Labor (DOL). 

This is an attestation-based program, through which the employer would attest that:

1. At least the prevailing wage would be paid to the employee,
2. The wage was not calculated based on commissions, bonuses, or other incentives, 
3. He/she has enough funds available to pay the wage promised to the employee, 
4. The employee will be put on payroll when he enters the U.S., 
5. No unlawful discrimination was involved in the hiring process, 
6. The job opportunity is available not due to any lock out, strike, or labor dispute,
7. The job opportunity's terms are in compliance with federal, state, and local laws,
8. The job opportunity has been and is clearly open to any U.S. worker,
9. The U.S. workers were rejected for lawful, job-related reasons, 
10. The job opportunity is for full-time, permanent employment. 

For quick overview of the PERM Labor Certification, please visit our webpage on PERM.

Matter of Palm Café Restaurant

In Matter of Palm Café Restaurant, the Certifying Office (CO) denied the Employer's labor certification application because it did not meet the 8th attestation above, that the job has been and is clearly open to any U.S. worker. The CO found that because the beneficiary employee was the brother of one of the "husband-and-wife owners" of the business, and the beneficiary was possibly an integral part of the employer's business, the job opportunity was never clearly open to the U.S. workers. Therefore, it failed the 8th attestation. 

However, BALCA disagreed and looked at the factors brought up in MMB Stucco, LLC, stating that "when determining whether a bona fide job opportunity exists, the CO should consider the "totality of the circumstances." 2011-PER-00715, PDF at 4 (BALCA May 7, 2012) (citing Modular Container Systems, Inc., 1989-INA-00228, PDF at 8-10 (BALCA July 16, 1991) (en banc). 

The Board considered the nine factors in MMB Stucco:

1. Whether the employee is in the position to control or influence hiring decisions regarding the job
2. Whether the employee is related to the corporate directors, officers, or employees
3. Whether the employee was an incorporator or founder of the company
4. Whether the employee has an ownership interest in the company
5. Whether the employee is involved in the management of the company
6. Whether the employee is on the board of directors
7. whether the employee is one of a small number of employees
8. Whether the employee has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application, and
9. Whether the employee is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the employee. 

Conclusion

The Board concluded that most of these factors are inapplicable to the employee in this case, with the exception of the second and ninth factors. Regarding the ninth factor, BALCA concluded that the employee is not "so inseparable" that the employer would be unlikely to continue the operation without the employee. There are many other chefs in the restaurant that could take over the position if the employee terminates his position. The Board agreed with the  CO on the second factor, that the employee was indeed related to the owner of the restaurant. However, the Board held that mere relationship to the owner, without more, is not enough to prove the lack of a "bona fide job opportunity."  

However, employers should take note that the BALCA undergoes a highly fact-intensive analysis in Matter of Palm Café Restaurant. If you are a small business employer thinking about hiring your foreign national relative as an employee, Zhang-Louie, Immigration Legal Counsel can help you take apart your own set of facts and closely analyze whether your organizational structure and hiring process are sufficient for the CO to grant your PERM Labor Certification. 

Benefits and Burdens of the New STEM OPT Rules

The new STEM OPT rules became effective May 10, 2016, authorizing students pursuing programs listed in the Designated Degree Program List for 24-month STEM OPT Extensions. This is a significant increase from the 17-month OPT Extension. Additionally, students will also be able to obtain an additional 24-months STEM OPT based on a prior degree, explained in more detail below.

During this transition period, from May 10, 2016 through August 8, 2016, those with more than 150 days left of their 17-month STEM OPT may file the I-765 for an additional seven months of OPT, provided that they have complied with all the requirements of the 24-month STEM OPT Rule mentioned below.

1. Wage and Hours Must be Commensurate With Other Similarly Situated Workers

The new 24-month STEM OPT Extension requires that the employer establish a clear employer-employee relationship with the student. Volunteering and other unpaid opportunities under the new STEM OPT is no longer allowed. The student's duties, hours and compensation must be "commensurate with those provided to the employer's similarly situated U.S. workers."

What type of wages would be "commensurate" with other similarly situated U.S. workers? Similar to the filing of H-1B petitions, immigration attorneys working on STEM OPT Extensions should obtain prevailing wage determinations (PWD) for the particular position held by the student and submit this information to the DHS along with the STEM OPT Extension. However, the DHS has also stated that alternative compensation schemes may be allowed, so long as they are "commensurate" with the compensations of other simularly situated employees.  This is significant for start-up companies with insufficient funding to pay their employees. These companies may offer the international student a percentage of ownership in the company, so long as the companies' U.S. employees are compensated in the same manner.

2. Employer Must Provide A Professional Training Opportunity 

With the 24-month STEM OPT Extension, the DHS has implemented the Form I-983, which both the student and the employer must complete.This form requires that employers work out a formal training plan with the student, which also includes evaluations of the student's progress during the two-year training period.


Through this form, the employers providing the STEM OPT Extension must attest to the DHS that:

1. They have the sufficient resources and personnel available to provide appropriate training in connection with the specified opportunity;
2. The STEM OPT student will not replace a full- or part-time, temporary or permanent U.S. worker; and
3. The opportunity assists the student in attaining his or her training goals. 

The more formal training program seems to be geared towards readying the student for an H-1B petition in the future. If the employer is required to compensate and rigorously train the student, it is more likely that the employer will sponsor the student for an H-1B petition and subsequently, EB-2 or EB-3. This is good news for the students.

However, this imposes a much greater burden on the employers than the original rule, as employers now must decide before hiring the student whether they have the resources to (1) compensate the student and (2) provide formal training to the student. Employment of the STEM OPT student also opens the employer up to site visits by the DHS, which could be unannounced if it is the result of complaints of noncompliance with the new rule.

All of these could dramatically deter employers from hiring STEM OPT students, for fear of the consequences of non-compliance. As a result, the students could be adversely affected by this new rule.


How these requirements will affect employers' decisions to hire a student on STEM OPT Extension remains to be seen. In many industries, such as high tech or biotechnology industries, employers may have no choice as there is a shortage of U.S. workers. However, keep in mind that if you are a startup company, you have more options, at least in terms of compensation to the STEM OPT student.

ADDITIONAL 24-MONTH STEM OPT

Despite the burdens on employers, the new rule is favorable to students that were not chosen in the lottery to have their H-1B petitions adjudicated or were chosen but subsequently denied H-1B. Previously, these students would have to return to their home countries and apply for the H-1B through consulate processing, provided that their current employer is still willing to sponsor them.

Under the new rule, in addition to being able to apply for an extension of their current 17-month STEM OPT if they have more than 150 days left of their term, they can also apply for a new 24-month STEM OPT, after the first extension, based on a previously-obtained degree. This leads to a total of SIX years of potential OPT for STEM students.

Timeline for a Hypothetical 2 STEM OPT Student

However, the rule gets a bit complicated if the student chooses to obtain a second 24-month STEM OPT Extension. (See Hypothetical to the right). This second extension cannot be immediately after the first 24-month STEM OPT Extension but MUST immediately follow another 12-month OPT. This second extension may relate to an earlier STEM degree, for which they have not used the STEM OPT, but it does not
have to relate to the degree on which the immediately preceding 12 month OPT is based. In terms of training, reporting, compliance through Form I-983, this second STEM OPT job would need to relate to that prior STEM degree, providing even more burden to the employers to contact the DSO of the school where the student received his degree many years ago.

If you want to hire a student for STEM OPT, consult Zhang-Louie, Immigration Legal Counsel and we will make sure that you follow the compliance and reporting requirements to hire and retain that valuable STEM OPT employee, so you can focus on your business's growth and profits.